FCC “Enforcement” Against Comcast?

There has been quite a bit of attention paid in the past week to statements by FCC Chairman Kevin Martin about possible FCC action against Comcast for interfering with some of its subscribers’ BitTorrent uploads. The idea appears to be that the agency could find Comcast’s actions inconsistent with principles set forth in the FCC’s 2005 broadband Policy Statement; order Comcast to refrain from such behavior going forward; and require more disclosure by Comcast of the details of its network management practices.

CDT is no fan of the particular network management tactics Comcast was using. We think that efforts to manage congestion should apply evenly to all traffic based on objective criteria like usage volume, not single out specific applications. They also should be transparent. Comcast’s practices failed both tests. Still, we’re not exactly popping champagne corks at the apparent prospect of FCC action. An actual FCC order on this topic — particularly one characterized as an “enforcement action,” which is how Martin was quoted — raises significant concerns. True, there is a policy gap here. Congress has deadlocked over the concept of Internet neutrality legislation, so there currently are no real legal safeguards against the risk of ISPs singling out content and assuming a greater “gatekeeper” control over Internet innovation. In the absence of a legislative policy framework, the FCC has sought to step in to fill the gap. It announced a set of broadband “principles” in the 2005 Policy Statement; it has served as a forum for debating and focusing attention on this issue; and at least some of the Commissioners have used the “bully pulpit” to discourage unreasonably discriminatory network management practices. Much of this may serve a useful role.

Comcast has already announced that it will switch to protocol-agnostic network management tactics by the end of the year. CDT has urged the FCC to continue down the path of providing principle-level guidance by (i) clarifying that its broadband principles apply to degradation of traffic rather than just outright blocking, and (ii) providing some high-level guidance about “reasonable network management,” in the form of a statement that congestion management tactics should be reasonably transparent, evenly applied, and consistent with core technical standards. But taking “enforcement action” is another matter. It raises troubling legal and policy considerations concerning the appropriate scope of the FCC’s authority. In order to engage in enforcement, there needs to be either: (1) An existing, articulated rule or standard against which to judge behavior; or (2) Authority for the enforcement body to adjudicate and issue rulings based on general notions of fairness/equity. It is difficult to argue that number (1) is present here.

The FCC expressly stated that its broadband principles are not rules. If they are not rules, then it is hard to see how the FCC can turn around and try to police violations of them as if they were . . . well . . . rules. Doing so would put the FCC on perilously shaky legal ground. As for number (2), CDT believes that everyone with a stake in the Internet — which at the end of the day is pretty much everyone, period — should be extremely wary of any assertion of open-ended and highly discretionary FCC jurisdiction over broadband Internet service. Even those who may like what the FCC proposes regarding the Comcast question should consider that they may be far less happy with what some future FCC may do, once the door to largely unguided regulatory action is open.

CDT believes that the FCC neither has nor should have open-ended authority to craft policies for the Internet out of whole cloth. This is the problem with suggesting, as some commentators have, that Internet neutrality concerns could be addressed via case-by-case adjudication and enforcement rather than ex ante rules. You can’t adjudicate and gradually build up a body of common law unless there is some underlying standard to adjudicate against — or unless you have broad authority to make law from scratch. That’s why CDT continues to call for legislation in this area. Having the FCC initiate and craft the entire legal framework, without Congress setting the parameters, cedes too much authority to the agency. It will be interesting to see how an eventual FCC order, if there is one, addresses the murky legal status of the FCC’s Policy Statement and what legal hook the agency tries to hang its action on.